NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CURT CLIFT,

Plaintiff-Appellant,

v. BNSF RAILWAY COMPANY,

Defendant-Appellee. No. 15-35695 D.C. No. 2:14-cv-00152-LRS
MEMORANDUM *

Appeal fromthe United States District Court for the Eastern District of Washington Lonny R. Suko, District Judge, Presiding Argued and Subm itted June 4, 2018 Seattle, Washington Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON, * * District Judge. 

# FILED
JUN 14 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation.Curt Clift appeals from the dism issal of his Federal Railway Safety Act

claim . We affirm
. 1 1. Federal Rule of Civil Procedure 17. On appeal, both parties cite a de novo standard of review, but we have held that we review “Rule 17 determ inations for abuse of discretion.” Jones v. Las Vegas Metro. Police Dep’t , 873 F.3d 1123, 1128 (9th Cir. 2017). It is clear from the order dism issing Clift’s case that the district court considered all of the record evidence presented to it and held that Clift was not entitled to the protections of Rule 17(a)(3), because “determ ination of the right party to sue” was not “difficult” and Clift’s m istake was not “understandable.” U.S. for Use & Benefit of Wulff v. CMA, Inc. , 890 F.2d 1070, 1074 (9th Cir. 1989). To the extent the district court applied a sum m ary judgm ent standard in its analysis, it gave Clift m ore benefit of the doubt than he was entitled by viewing the facts in the light m ost favorable to him . The district court relied on the following evidence in reaching its conclusion.

• Clift participated in his “OSHA Com plaint just 11 weeks prior to filing Bankruptcy.”

• Clift requested in the OSHA proceeding “that BNSF be ordered to pay . . . all com

pensatory dam ages, and punitive dam ages (up to $250,000).”

• OSHA interviewed Clift in the presence of his attorneys regarding his claim one week prior to filing bankruptcy.

1 The m otion for judicial notice is denied. 2• Prior to filing his com plaint in federal court, “Clift was told by one of his attorneys that he needed to ‘fix’” his bankruptcy filings to correct the failure to disclose the claim at issue in this case.

• Although Clift’s original bankruptcy attorney expressed a “willingness to represent Clift” in fixing the problem in the bankruptcy court, Clift did nothing to fix the om ission at that tim e. This evidence is sufficient to affirm the district court’s determ ination that the protections of Rule 17(a)(3) did not apply, because Clift’s m istake in filing the claim in his own nam e was not honest and understandable. Moreover, we cannot, as Clift requests, rem and for the district court to substitute the bankruptcy trustee as the real party in interest. After the district court’s judgm ent in this case, the bankruptcy court closed Clift’s bankruptcy case and discharged the trustee, resulting in the abandonm ent of any unadm inistered property—including the claim against BNSF that Clift had belatedly disclosed on his am ended schedules. See 11 U.S.C. § 554(c); Dzakula v. McHugh , 746 F.3d 399, 400 & nn.1–2 (9th Cir. 2014). 2. Judicial Estoppel. Judicial estoppel is an equitable doctrine, so we review the district court’s ruling for an abuse of discretion. Ah Quin v. Cty. of Kauai Dep’t of Transp. , 733 F.3d 267, 270 (9th Cir. 2013). “Although judicial estoppel is ‘probably not reducible to any general form ulation of principle,’” we have identified three factors that “typically inform the decision whether to apply the

3doctrine in a particular case.” See id. “First, a party’s later position m ust be ‘clearly

inconsistent’ with its earlier position.” Id. (quoting New Hampshire v. Maine , 532 U.S. 742, 750 (2001)). “Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was m isled.” Id. (quoting New Hampshire , 532 U.S. at 750)). Third, courts consider “whether the party seeking to assert an inconsistent position would derive an unfair advantage or im pose an unfair detrim ent on the opposing party if not estopped.” Id. (quoting New Hampshire , 532 U.S. at 751)). Each of these factors was clearly m et. In 2011, Clift represented to the bankruptcy court that he did not have any claim s (when he actually did), and the bankruptcy court relied on Clift’s om ission in granting him a discharge on Septem ber 28, 2011. On Decem

ber 19, 2013, Clift filed this suit in the district court, raising a retaliation claim incurred in 2010 (before his bankruptcy was filed). Judicial acceptance of this inconsistent position would create the perception that the bankruptcy court was m isled. Only when the bankruptcy was disclosed in discovery and BNSF filed a m otion to dism iss did Clift m ove to reopen his bankruptcy and solve the problem he had created. Absent “inadvertence or
4m istake,” the fact that Clift reopened the bankruptcy case and am ended his

schedules is “irrelevant to the analysis of judicial estoppel.” Id. at 273. For the reasons articulated above, the district court properly rejected Clift’s claim of inadvertence or m istake. AFFIRMED.

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